Standing Committee D

[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

New Clause 1 - Jurisdiction of the court

``This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.''.—[Mrs. Gillan.] 
 Brought up, and read the First time. 
 Question proposed [this day], That the clause be read a Second time. 
 Question again proposed.

Frank Cook: I remind the Committee that we are also considering the following: New clause 5—Ratification: reservations and declarations—
 ``The Secretary of State shall not ratify the ICC Statute unless— 
 (a) a report is laid before Parliament, setting out— 
 (i) any reservations Her Majesty's Government proposes to make and the reason for those reservations, 
 (ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and 
 (iii) that report is approved by each House of Parliament.''. 
New clause 7—Declaration upon ratification— 
 ``This Act shall have effect subject to the making of a declaration by Her Majesty's Government upon ratification, to be deposited with the Secretary General of the United Nations, as follows— 
 `Her Majesty's Government, being cognizant of the declaration upon signature by the Government of the State of Israel, will itself reject attempts to interpret its provisions in a politically motivated manner against actions of the United Kingdom and its citizens. Her Majesty's Government hopes that the United Kingdom's expressions of concern at the consequences of politicization of the intended central impartial body will help prevent the undermining of the objectives of the Statute.'.''.

Edward Garnier: Before lunch, I was drawing to the Committee's attention the differences between the reservations or declarations of different states. The Minister called them interpretative declarations, which various states have entered. I was referring in particular to the distinction between those entered by the Governments of France and New Zealand.
 The Governments of those two countries have long-standing differences about nuclear weapons testing in the south Pacific, so it is not surprising that their views on nuclear weapons generally are different. Whether we call it a reservation with a capital R, a reservation in lower case or an interpretative declaration, we are faced with the position that two sovereign countries, both state parties to the statute of Rome—France has ratified and I think that New Zealand has also ratified, although I am not sure—are taking diametrically opposed views on matters including the use of nuclear weapons in the definition of war crimes. It does not much matter whether one of them is right and one is wrong; it will cause huge difficulties for the ICC when it is set up following complete ratification. 
 I briefly draw attention to one or two other problems of which we should be aware following the publication of those interpretative declarations. France 
``considers that the term `armed conflict' in article 8, paragraphs 2(b) and (c), in and of itself and in its context, refers to a situation of a kind which does not include the commission of ordinary crimes, including acts of terrorism, whether collective or isolated.'' 
That is interesting because France has suffered problems with terrorism, not only from Islamic fundamentalists but from those connected with the Corsican freedom movement. The French Government do not love terrorism any more than do the Government of our country, where we have been the victim of terrorism from Ireland and elsewhere. 
 The French also say: 
 ``The situation referred to in article 8, paragraph 2(b)(xxiii), of the Statute does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law.'' 
Article 8.2 (b)(xxiii) of the Rome statute refers to utilising 
``the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''. 
One might be concerned that directing an attack upon a civilian population could amount to a war crime—I use the term loosely—by the terms of the Rome statute, but the French have made it quite clear that they do not accept that that will necessarily be the case in all circumstances. 
 There were relevant examples in the war against Iraq. As I understand it, Saddam Hussein deliberately placed civilians in buildings of military significance to give some form of spurious protection to those buildings. To say the least, that was bad luck for the civilians who were killed. Against their will, they were placed in a position of vulnerability when the allies legitimately attacked a site of military significance. The French are now making it clear that they will not be frightened by a Saddam Hussein who misuses his population to inhibit a French military objective. That touches on the point made by my hon. Friend the Member for Reigate (Mr. Blunt) last week: he said that the ICC and its requirements might inhibit freedom of military action. Nobody on the Opposition Benches in Committee wants military commanders to feel free to commit war crimes but, on occasion, there will be legitimate military objectives that will be inhibited unless we take the same robust line as the French.

Crispin Blunt: This is an essential issue on which we must focus. Article 8.2(b)(xiii) of the statute of Rome says that a person guilty of a war crime is someone
 ``Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''. 
I do not need to tell you, Mr. Cook, that it is not much good if one loses a war because one was not able to take a military objective owing to the fact that someone else was committing a war crime. One must be able to execute operations to win a war. To be told that we would be equally guilty of a war crime if we took out such an area—that is the implication of the statute—is a serious issue, and that is why the French clarification is so important.

Edward Garnier: My hon. Friend's intervention leads me on to my next point. France's fifth interpretative declaration is as follows:
 ``The Government of the French Republic declares that the term `military advantage' in article 8, paragraph 2(b)(iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof.'' 
Article 8.2(b) states: 
 ``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts'' 
will be ``war crimes'', as will the following in 8.2(b)(iv): 
 ``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''. 
No objective tests can be applicable to sub-paragraph (b)(iv) when one has to deal with adjectives such as ``excessive''. 
 To use an historic example, I am concerned that the modern equivalent of the bombing of the Ruhr or of the Mohne dam by the RAF might, once the ICC is up and running, constitute a serious violation under article 8. If a sensible and just decision is to be taken in relation to an allegation against a war commander—be he a civilian or military leader under article 8(b)(iv)—it will require an exchange of opinion as much as an assessment of fact. I appreciate that any opinion should be based on fact. No wonder the French have issued an interpretative declaration. 
 Their sixth declaration is: 
 ``The Government of the French Republic declares that a specific area may be considered a `military objective' as referred to in article 8, paragraph 2 (b) as a whole if, by reason of its situation, nature, use, location, total or partial destruction, capture or neutralization, taking into account the circumstances of the moment, it offers a decisive military advantage.'' 
In our excitement and enthusiasm in ensuring that war criminals are brought to book, we must not lose sight of the fact that war, even in its defensive definition, is a nasty business. People get killed in war. If the United Kingdom, still less France, is attacked, there is no reason why we should not take steps to defend ourselves with considerable brutality. I do not suppose that anyone is denying us the right to respond in kind, but situations—I use that expression in the manner employed by the statute of Rome—will occasionally arise in which all manner of nasty things happen. 
 As I said, I am concerned that unless we, like the French, are sufficiently confident to issue interpretative declarations, our military capability will be hamstrung, and I am not sure that that is this Government's intention. I fully accept their motives in wanting to get the Bill on the statute book as quickly as possible, and in wanting to become one of the first 60 ratifiers of the statute of Rome. We have been in Committee for some time and the Bill has been round the course in the other place. I am concerned that, in their altogether laudable desire to achieve their ends, the Government are mindless—in the sense of unwitting—of the fact that we cannot enact the Bill or adhere to the statute of Rome in a vacuum.

Cheryl Gillan: When I was moving new clause 1 this morning, I did not have the advantage of a translation of the original French text. At the time, I thought it impolite to read the French text to the Committee without the benefit of a translation. However, after translating small portions of the text, the Library staff confirmed my suspicion that the opt out and the accompanying measures in the French legislation will not exonerate a French person who has committed a war crime. It was said in the debate that the French authorities want to take advantage of the transitional period to check that the guarantees introduced in the statute are effective, and to avoid any possible abuses impacting adversely on the French situation. Does my hon. and learned Friend agree that the French are pursuing this matter in a sensible manner?

Edward Garnier: Yes, I agree wholeheartedly, and I say that as someone who has many reservations about certain aspects of French domestic and foreign policy—under both the current French Government and their predecessors. None the less, when French people and French Governments of whatever political colour consider the issue that is most important to them—the integrity of the French Republic—they do not shrink from putting French interests first. That does not mean to say that in doing so they are careless of the need to abide by civilised standards of conduct in peace and in war.
 In due course, I shall turn to the seven-year opt out under article 124, but there seems nothing inimical in the French's interpretative declarations. Nothing has served to undermine the French Government's enthusiasm for, or the cogency of arguments in favour of, setting up the court. I regret that, even if my arguments may brush this Government's imperial hem from time to time, in terms of votes I am powerless to persuade them to change their minds. 
 I should remind the Committee of one or two other matters that the French thought it important to get on the record before signing up to the treaty. Their sixth interpretative declaration continues: 
 ``The Government of the French Republic considers that the provisions of article 8, paragraph 2(b)(ii) and (v)''— 
which are: 
``(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives'' 
 ``(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives— 
 do not refer to possible collateral damage resulting from attacks directed against military objectives.'' 
 That reinforces the point that I was making a moment ago: war is a beastly business. When using heavy artillery to direct high explosives at a legitimate military target from some miles away, it is inevitable that not every missile, projectile or shell will hit the intended target, and undefended civilian dwellings and buildings may be damaged as a consequence. The French have had the common sense to recognise that and to say to the world at large, ``Get real.'' Regrettably, we do not seem to be sufficiently courageous to do that. 
 The seventh interpretative declaration states: 
 ``The Government of the French Republic declares that the risk of damage to the natural environment as a result of the use of methods and means of warfare, as envisaged in article 8, paragraph 2(b)(iv)''— 
that is: 
``(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated— 
 must be weighed objectively on the basis of the information available at the time of its assessment.'' 
The French are asking the court to do precisely what I was talking about a moment ago, when I was concerned that sub-paragraph (b)(iv) required the application of a subjective test, not an objective one. If the Government recognise the good sense of the thrust behind declarations 1 to 7 as put out by the French— 
 Committee suspended for a Division in the House. 
 On resuming—

Edward Garnier: I have outlined the French interpretative declarations and, beyond reminding the Committee of my remarks this morning, I will not refer to the New Zealand declarations because they are on the website for all to see. No doubt all members of the Committee will be familiar with the New Zealand interpretative declarations.
 I shall give the Committee an idea of the different sorts of declarations that are appearing. That entered by the state of Israel is more like an essay on the history of Israel. It states: 
 ``Being an active consistent supporter of the concept of an International Criminal Court and its realisation in the form of the Rome Statute, the Government of the State of Israel is proud to thus express its acknowledgement of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity.'' 
After describing how Israel was one of the originators of the concept of the international court, it continues: 
 ``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool. Today, in the same spirit, the Government of the State of Israel signs the Statute while rejecting any attempt to interpret provisions thereof in a politically motivated manner against Israel and its citizens. The Government of Israel hopes that Israel's expressions of concern of any such attempt would be recorded in history as a warning against the risk of politicisation, that might undermine the objectives of what is intended to become a central impartial body, benefiting mankind as a whole.'' 
The declaration carries on in a similar vein, while supporting the concept behind the ICC. 
 I do not want to belittle any of those declarations, and certainly not the one made by the state of Israel. Those made by Austria, Belize and Finland are simply technical and procedural and tell the world how they wish to receive communications from the ICC, while there are other, rather discursive, declarations, of which Israel's is an example. We then have the type made by France and New Zealand. I do not suggest that our Government should have made a declaration along the lines of Israel's, and it is not necessary, given the way in which the statute is framed, for us to have entered declarations or reservations along the lines of those of Belize or Finland. 
 However, we should not dismiss, wantonly or lightly, the way in which the French have approached the matter. What is behind these and other considerations is not narrow nationalism, or even an unwillingness to support—as I am sure that we all do—the principles behind setting up the court, but a simple acceptance that modern actions by troops and armed forces are extremely complex, sensitive and difficult. The French have been courageous enough to tackle the issue head-on and confront those difficulties. It will not do for us, either as a Government or Parliament, to suppress those difficult questions. 
 Modern war involves many levels of response, and is a hugely complex issue, but, as I said before the Division, it is a beastly business. We must not, in the comfort of this Committee Room, or the policy-making rooms in Departments or party political headquarters, forget what we are about. We are considering the introduction of a code of conduct in relation to killing people. The universal jurisdiction, to which my hon. Friend the Member for Reigate referred, is no more or less than an assessment or realisation that we are talking about power, backed by military might. There can be no such thing as universal jurisdiction or a universal court unless it is backed by military power. In a civilian context, it is difficult to enforce the law without a police force, so it will be extremely difficult to enforce the law of the ICC without military might. 
 That has been true ever since the concept of international jurisdiction began in Roman times. The Romans were able to develop the concept of international jurisdiction in the suppression of piracy in the Mediterranean because they had the fleets to do so. In the days of our expanding empire 200 or 300 years ago, we were able to protect our trade routes and maritime trading fleet from pirates only because the Royal Navy ensured that we were in charge. 
 Let us not pretend, in signing up to the ICC, that we can do so in any spirit other than one that confronts the nastiness of war, the need for military might and the political will to back up our policies.

Robert Maclennan: Does the hon. and learned Gentleman think that the experience of the former Permanent Court of International Justice and, post-1945, the International Court of Justice, militates against his argument that international courts require their judgments to be enforced by military power to be effective? Neither of those courts enjoyed that sort of backing and the majority of their judgments have been observed. There have been exceptions when the matter took a long time, such as the Corfu channel case, but the hon. and learned Gentleman's argument does not reflect 20th century history.

Edward Garnier: I disagree with the right hon. Gentleman, because the courts that he touched on were not courts that dealt with the consequences of war, but courts that often dealt with how to prevent war. That is a different matter, and the distinction is worth remembering.

Robert Maclennan: Some of the cases have dealt with the consequences of war. The Corfu channel case dealt with the mining of the Corfu straits, and that was a military matter. Whether or not the ICC operates against the background of military interchange is irrelevant to its authority. The authority of those two courts stemmed from the substantial numbers of people who subscribed to their founding statutes and who had expressed advance willingness to live by their judgments.

Edward Garnier: I misheard the right hon. Gentleman and did not hear the geographical location that he mentioned. I thought that he was referring to an abstruse Japanese channel that I had not heard of. Although I have now corrected my understanding of the case to which he referred, I shall not be moved from my argument—even though I know that the Corfu channel would be of interest to any formal naval man who was in the room.
 I remind the right hon. Gentleman that defendants appear before the international criminal tribunal for former Yugoslavia only because NATO troops go in, pick them out and arrest them. At last, we see the new Serbian Government charging their own soldiers, and last week, or the week before, the domestic authorities arrested 183 Serb military folk. That is an advance, and complementarity is being exercised before the ICC has been set up. The tribunal in The Hague may have encouraged such actions. 
 None of the previous defendants would have reached The Hague if the allies had not had been present in military strength. That is not controversial; I would have thought that it was undeniable. I am not sure whether the right hon. Gentleman is right or wrong, but he disturbs my point. 
 I do not wish to progress along the line taken by the right hon. Gentleman's noble Friend Lord Lester of Home Hill about exercising the royal prerogative. That is my hobby horse, and I have mentioned it sufficiently for the Committee to know my views. 
 I remind the Committee of the manner in which the Government briefly dealt with the important matter in the other place. The Attorney-General said that noble Lords had pointed out that article 120 of the Rome Statute states: 
``no reservations may be made to this Statute. Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the fact—already found in some declarations—that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one. 
 We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1301-02.] 
That was what the Attorney-General said more than a month ago. It may be that the Government's thinking process has moved on a touch. I remind the Government that the attitude of the French is not destructive—like them, the British are a nuclear power, have the ability to project military power well beyond the boundaries of our country, and should have a more rational and self-confident approach to the statute.

Gerald Howarth: Can my hon. and learned Friend tell the Committee what effect the reservations entered by the French have on their obligations under the treaty? They are described as ``interpretive declarations''. Is it a case of the French getting their retaliation in first in terms of the interpretation of various words in the statute?

Edward Garnier: If I were a member of the new Labour party, I would say that it was called ``sending a message''. The French Government have entered the negotiations not because they like to ride in the air, but as a symbol of their diplomatic will. They are expressing their attitude about their adherence to the treaty and how they think that it should affect them. The declaration under article 124 is the only one of immediate practical effect following the introduction of the treaty. Once the seven-year period has passed, however, their interpretive declarations will affect the way in which French courts consider the matter when their citizens, or citizens of other countries, are tried in them as part of the complementarity process.
 The declarations are clear: they can be matched up with articles in the statute, and, a Frenchman—and, more importantly, a French general—can see precisely where he stands. That says to me that the French Government are prepared to support wholeheartedly their soldiers, airmen and naval commanders in the carrying out of their military duties on behalf of the French Republic. That is not in this Government's mind, and I suspect that, although a given Secretary of State for Defence—even a Labour one—will not act capriciously and disloyally towards the troops that he or the Prime Minister requires to go into battle on our behalf, it must be comforting to French soldiers that there is a wording that makes it clear beyond doubt that they should not feel inhibited in the least in what they do. Any French solider who commits a war crime will be subject to French law, but, when the French courts decide whether there has been an infringement of French law, they will no doubt want to look at the declarations and the evidence relating to the particular operation under scrutiny. In the light of those declarations, they will no doubt err on the side of caution before convicting a French general, politician or soldier. 
 As I said a moment ago, the Government's response to Opposition amendments dealt fairly briefly with that point. The Government seem to rely on the kind of language used by Louis XIV—``I have said what I have said, and that is an end of it.'' I am not sure that that is a satisfactory way to deal with legislation, especially when, frustratingly, the legislation concerned cannot bite on the statute of Rome. It is interesting that the Liberal Democrats in the other place were happy to go along with the Government's line, despite the history of Lord Lester's practice with which we were provided in that debate. I, on the other hand, am worried that we are giving the Government the ability to give away the powers of this country, without allowing Parliament to have any purchase on the matter. 
 I conclude by quoting Lord Howell, who said: 
 ``Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent?'' 
The lawyer, Lord Lester, was concerned that, if the course that we are now advocating were accepted, it would set a precedent. Parliament used to be a master of its own proceedings. It did not have to be worried about precedents; it just passed another law. My noble Friend went on: 
 ``I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made. 
 The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1305-06.] 
There we have it. It is a matter of attitude whether we should behave in a particular way towards the statute. 
 We are taking a hugely important step in respect of the ICC. If we at any stage allow our gaze to be distracted by our enthusiasm to pass the Bill and ratify the treaty, so that we are negligent of the needs of our armed forces and careless with the demographic needs of Parliament to have some control over the Executive—which is difficult in this present Parliament—we are doing not only ourselves, but those who sent us here, a huge disservice.

Crispin Blunt: It is a pleasure to speak to new clause 7 and to follow my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) who spoke to new clause 1 and new clause 5 respectively. Many of the themes that they used to support their arguments go to the heart of the International Criminal Court.
 The Minister explained that we are protected by complentarity and that people will be tried first in a British court. In the usual run of events, that will be fine. If the court works as we want it to, there will be no problem—but what if there is a problem? The Government cannot say in Committee or elsewhere that the statute will work all right and there will be no problems with the ICC. They cannot guarantee that. That message runs through the declarations that have been made and the reservations that have been entered by other states upon signature. 
 New clause 7 refers specifically to the declaration made by the state of Israel, which may be the classic case of a state's concern about the statute. Unlike most other countries, Israel has been engaged in an almost constant battle for its survival: it has had to fight for its existence on at least four occasions. Therefore, it is unsurprising that it is the state that is the most concerned. It is supreme irony that it is the appalling crimes that were committed against the Jewish people that provided the strongest impetus for the creation of the ICC. 
 Paragraph 2 of the Israeli declaration upon signature was not quoted by my hon. and learned Friend the Member for Harborough, but it is especially important. It states: 
 ``As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950's, actively participated in all stages of the formation of such a court. Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the holocaust—the greatest and most heinous crime to have been committed in the history of mankind—enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute. Responsibly, possessing the same sense of mission, they currently support the work of the ICC Preparatory Commission.'' 
It is a serious indictment of the statute that the state that was born out of the greatest crime against humanity of the 20th century saw fit to add the following words, which my hon. and learned Friend did quote: 
 ``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states.'' 
The new clauses should not be discussed with reference to the court working perfectly, much as we all want it to. Rather, the Committee must discuss the detail of the Bill in the context of our obligation to discharge our duty to defend the United Kingdom and its global role in promoting human rights and employing its armed forces to defend liberty. Before the Committee allows the Bill to progress to the Report stage in the House of Commons, it must be confident that the court will work as intended, and that if it does not, some cover is in place for our armed forces. 
 We cannot put real cover in place, because we have signed the statute and it is a done deal. However, during the debate on my first amendments during the third sitting, I asked the Government to plant a flag in the ground to make it clear how we expect the court to develop. Israel has done that, as, to a degree, has France. New clause 7 draws specific attention to Israel's declaration, and it merely asks the Government to make a declaration, when the treaty is ratified, that we are aware of the Israeli Government's statement about the court, and that we will 
``reject attempts to interpret its provisions in a politically motivated manner against actions of the United Kingdom and its citizens. Her Majesty's Government hopes that the United Kingdom's expressions of concern at the consequences of politicization of the intended central impartial body will help prevent the undermining of the objectives of the Statute.''.'. 
Nothing more can be done, except in relation to article 124, which I will discuss shortly, and the ability to protect our armed forces from the provisions of article 8 for seven years. All we can do is to declare that we will sign and ratify the statute, but in the course of our proceedings in Committee send a warning that we will not give the ICC and the states parties to it a blank cheque to behave in a way that is inimical to the proper interests of the United Kingdom.

Louise Ellman: I refer the hon. Gentleman to a discussion in a previous sitting. Does he reject the assurances given by the Minister when reference was made to the importance of the pre-trial chamber, the appointment of judges and prosecutor and the importance of impartiality in those matters?

Crispin Blunt: I do not reject those assurances, but they cannot be absolute. What the negotiators on behalf of the United Kingdom tried to achieve byu adding the pre-trial chamber to the statute during the Rome negotiations is another element in the protection against the court becoming the political tool of certain states. However, I would argue that the pre-trial chamber does not actually do that. It is supposed to put a lock on the prosecutor, but that does not prevent the three judges of the pre-trial chamber, if a victim appeals to it, from instructing the prosecutor and going on to conduct inquiries if the prosecutor decides not to conduct an investigation at the beginning of the prosecution. The pre-trial chamber, therefore, does not act simply as a lock on the prosecutor, but acts as a body that can itself receive the complaints of victims who are likely to request the court to initiate an investigation. The court might decide to initiate investigations in circumstances in which our soldiers were involved, even when we in the United Kingdom had decided that they should not face trial because we had decided the actions were wholly proper, and when our political leadership had made it clear that they thought that they were acting within international law. In such a case, the pre-trial chamber would not operate in the way intended.
 I want to add new clause 7 to the Bill to give a clear indication of our concern about the direction that the court may take. My hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham speaking to the other new clauses in the group have made important points to which I want to add. Will the Minister explain the Government's understanding of the negotiations on article 124, which contains the seven-year opt out? I assume that France was the nation that pushed for that article and that exception. We understand from the record that the measure is intended to give the French seven years in which to arrive at a judgment on whether the court is working properly. 
Mr. Battle indicated assent.

Crispin Blunt: I see the Minister nodding in assent. The plan was that if the project went sour very quickly, after seven or even six years, and became a vehicle to chase after the United Kingdom, France and the other permanent members of the United Nation Security Council, a nation might withdraw under article 127 and ensure that its soldiers were not tried in an international court that failed to meet the expected standards of impartiality.
 The reason why that is a real concern can be seen in the declarations made by the states themselves. My hon. and learned Friend the Member for Harborough went through the French reservations in detail, but one can see from those entered by New Zealand that both those countries approach the matter from different directions, especially in relation to the use of nuclear weapons. The Government of New Zealand draws 
``support for its view in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (1996) and draws attention to paragraph 86, in particular, where the Court stated that the conclusion that humanitarian law did not apply to such weapons `would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.''' 
That directly contradicts France, which makes clear its view that it is allowed to use nuclear weapons in its own defence. 
 The Minister cannot say that there is no potential problem; there clearly is if as they are likely to, the majority of non-nuclear states take the New Zealand line on the matter. The states that will be the most enthusiastic about the treaty and therefore the first to ratify it are liable to be those that take the most forward position on these issues. Their interpretation will be in line with that of New Zealand—I use nuclear weapons merely as one example—rather than that of France. 
 By putting a declaration into the Bill, we set an example to all the other states, not least those of the Commonwealth, that are waiting for us to pass our Bill so that they can see what it looks like before they pass a copy—in a sense—through their own legislatures as part of their process of ratification. The message that we send out is therefore immensely important. If we make it clear that we, as a nation that has a similar role to France in terms of international commitments to peacekeeping and the United Nations, will stand by France and make a similar declaration, such as appears in new clause 1, we could expect other nations that are looking to the United Kingdom Parliament to help them decide which direction to take in introducing treaty ratification legislation to make a similar declaration. 
 Even if new clause 1 is added the Bill, neither we nor the Minister can protect our armed forces for all time and ensure that they will face British, rather than international, justice for the crimes that they commit. We all hope that there will be no circumstances in which British soldiers, their officers or their civilian political commanders will be brought to justice by the ICC. However, the number of engagements in which we have taken part in the past serves to indicate how many we will undertake in future: it would be as well for members of the Committee to remember that there has been only one year since 1945 in which a British soldier has not died on active service somewhere around the world. 
 In terms of the part played by our armed forces, we are a very committed country. We cannot pretend that our role is always uncontroversial and has the wide support of the international community. We have only to look at what is happening in the skies over Iraq to appreciate the controversy that can flow from military operations that we regard as wholly proper that are aimed against one of the most despicable dictators that the middle east has thrown up in the 20th century. We must remember that many of our partners, not least the French, think that the actions of the United States and the United Kingdom are nugatory in their own terms, and that our operations do not command any degree of active support in the middle east itself. 
 I urge the Minister to consider the new clauses carefully. New clause 1 would send a signal to our armed forces that we are going to see how the ICC works before we put them within its jurisdiction in so far as war crimes are concerned. As the Minister rightly pointed out, that does not mean that they escape justice; they remain within the remit of English law in respect of being brought to justice for such crimes. New clause 1 would deal with the problems of interpretation to which my hon. and learned Friend the Member for Harborough referred in connection with article 8.2(b)(xxiii), and with the points made by the French in connection with article 8.2(b)(ii) and (v). They deal with collateral damage and the actions of armed forces throughout the 55 years since the end of the second world war. 
 In conclusion, I return to the question of Israel. In the second half of the 20th century, Israel has probably had to fight more desperately for its survival than most other states. Since 1945, we have enjoyed the privilege of not being in that position. Almost everyone in this Room was not even alive at the time of the second world war, and it is all too easy for us to believe that we will never again have to fight desperately for our nation's survival, or in alliance with others for the survival of our way of life. Until 1986, I served in the British Army of the Rhine, preparing against the Soviet hordes' piling over the inner German border. It became fairly clear that, should such an invasion take place, one's life expectancy as an Army reconnaissance officer would not be especially lengthy. We carried out our duties for real, and trained to deploy in the full expectation of such an invasion. In other words, it is not that long ago that we, in alliance with other nations, were preparing to fight for our very survival. 
 Because we have always been part of a coalition with overwhelming force at its disposal, and because we have almost always been on the victorious side, commanders have had time to consult a lawyer at their shoulder to discover whether their proposed actions comply with international law. That is true to an increasing degree—indeed, it is true of all the conflicts in which we have participated. Perhaps the best example was the operations over Kosovo: the target lists for the United States air force were pored over at a level as high as the White House, and whether a particular target could be engaged was, no doubt, the subject of legal advice, so it is no surprise that it took what seemed an inordinately long time for the air force to respond to target information. 
 However, if we become involved in a fight for our survival, we cannot afford to require our military commanders to consult the lawyers to discover whether their plans are legal. The more desperate the conflict and the less control we have over events, the rougher and readier judgments become. If we believe that all conflicts will be like the Gulf in 1990-91 or Kosovo in 1999, we are fooling ourselves. A time may come when we confront an adversary who is our equal. We may also encounter adversaries who use asymmetric threats and fail to respect the laws of war and the rulings of the International Criminal Court. 
 In the end, we simply do not know how we will deal with such challenges. However, we do know that the United Kingdom is a civilised member of the world community with a proud record of establishing human rights and standing firm for freedom with the blood of its armed forces and its treasure—goodness knows how much treasure we have spent during the 20th century in the cause of freedom. If we—our Parliament and country; this cradle of democracy—end up on the back end of an ICC that is in the hands of people who have a political agenda as feared by the state of Israel, we will not have done our nation any service. 
 I hope that the Minister will find a way of accepting new clause 1, which is important to our armed forces and will send a signal that Britain's attitude towards its armed forces is consistent with that of France. The Minister said that he would look to use words such as those suggested in new clause 7 to make a declaration that we will not accept the court becoming the political tool of those whose agenda is different from ours.

Robert Maclennan: Perhaps because I belong to the generation that lived through the last world war and personally recollect some of the incidents of war and its aftermath—such as the Nuremberg trials—I take a different view about current priorities from those expressed by the Conservative Members who have spoken. They are concerned that the ICC might abuse its power, and they think that their uncertainty about that is sufficient to make it wise not to submit to its jurisdiction for seven years. That, however, must be weighed in the balance against the importance of strengthening the world's deterrents against war crimes.
 The record of international institutions seems more exemplary than that of the individual nation states that comprise them. My great concern is that the laws of war will be ignored or paid mere lip service by belligerent countries if we do not take the enforcement process forward.

Crispin Blunt: Will the right hon. Gentleman consider the seven-year exemption for the armed forces? Seven years will be a tiny part of the history of an institution that will be built for the future and for the whole time in which the world order remains as it is. Surely it is not unreasonable to want to see how the court develops. The soldiers whom we want to exempt from the ICC will remain subject to the justice of the countries who sign up to and ratify the statute.

Robert Maclennan: I am, perhaps, less bashful about the British example than Conservative Members. It would be highly desirable for the British Government, between now and the end of the seven-year period, to participate directly in the formulation of the ICC's procedures. We should not hang back to see how other, lesser nations—to use the language implicit in the new clauses—handle such issues. We have influenced the shape of the statute; let us influence the shape of the procedures and show other participating countries that this method of dealing with international outrages enjoys our full support.
 We should not invoke the doctrine of unripe time, nor say that this is a suitable system only for other people, for lesser breeds without the law. This is a suitable system for us and for other countries like ours. It is quite wrong to oppose the interests of our troops in the operation of this system.

Gerald Howarth: I hope that the right hon. Gentleman does not think that Conservative Members regard other states as lesser in their commitment to the values underpinned by the statute. I hope that he will accept that our concerns arise from the fact that United Kingdom and French troops are more likely to be called upon and United States troops will undoubtedly be called upon. Many of the other countries' troops will not be called upon, or if they are, only small numbers of them will be involved.

Robert Maclennan: I do think that Conservative spokespersons have indicated that they regard the other countries that will participate in the ICC as less reliable than us when it comes to implementing the best procedures. They have argued that other people cannot be trusted to operate the statute without political bias and motivation, and that such people will do so not according to the rule of law, but as a result of various pressures. That is what Conservative Members are arguing, which means that they regard other countries as less bound by the rule of law and justice.

Tony Worthington: Does the right hon. Gentleman, like me, doubt the argument that has often been put that United States and British troops are more likely to be involved in those activities? If one examines which troops are involved in UN activities, one discovers that the Bangladeshis and the Nigerians are heavily committed. Those forces are not dominated by Britain and the United States--that is not the pattern.

Robert Maclennan: The hon. Gentleman makes an exceedingly powerful point. It is interesting that he represents Clydebank and Milngavie, which is part of our country that was subjected to outrageous abuses of the laws of war in the second world war. The weight of argument for the rapid implementation of the statute is in the interests of both soldiery and civilians. We do not want to see our soldiers engaged in more international fighting than we can possibly avoid. That is one of the underpinnings that help the arbitrament of violence in the international community in place of war.
 I heard two comments, one of which came from the hon. Member for Chesham and Amersham, which disapprovingly referred to the litigious age in which we live. I wish it were true that the settlement of international disputes were by the law rather than by force, which is the method that has characterised the 20th century. Certainly, it is preferable that such matters, including international crime, should end up in the courts, and not in victor's justice. The victors are not always guiltless. For many long years, the victors in eastern Europe were barbarous Russians who inflicted holocausts scarcely less terrible than those of the Germans, to which the hon. Member for Reigate referred. That was victor's law but the courts would have been preferable. 
 I do not think that the hon. Member for Harbourgh offered his comments in an entirely pejorative sense, but he spoke with some distaste of a codification of the law on the killing of people. It is true that that adds to the corpus of the laws of war, but it is nothing new. There were laws of war in the middle ages, which were to some extent observed with greater rigour than such laws have been in early modern times. It has been part of mankind's progress to build on the development of the theories of the jurists, the Jesuits, Suarez, Vittorio and Grotius in developing laws of war. What has always been missing is the means of giving effect to the agreed norms. 
 To ask us to wait for another seven years is to betray a lack of urgency in the face of a problem that is very present. It is not a theoretical problem; scarcely a year goes by without violations of the laws of war.

Edward Garnier: I fear that I was wasting my time even more than I thought. The right hon. Gentleman's remarks bear no relation to my contribution. I did not suggest that I disapproved of adding war crimes to the corpus of law. The point that I was making, which the right hon. Gentleman has not addressed, is that this court can be effective only if it is backed up by might or power. The jurists in mediaeval times were able to improve the way in which war was conducted because their thoughts were backed up by practical power. We cannot get away from that.
 I do not mind a Liberal Democrat insulting me or misconstruing what I have said, but the right hon. Gentleman's comments should have some bearing on what I actually said. I invite him to reconsider his remarks.

Robert Maclennan: I am happy to reconsider what the hon. and learned Gentleman had to say. If I have misconstrued his remarks, I certainly do not wish to pursue the point. However, I do not resile from the earlier point that I made in answer to his argument about might being essential when international law tries to make itself effective. I do not think that that is necessarily the whole truth. The existence of laws acts as an inhibition on infractions. The possibility that perpetrators of crime may be brought to justice has a bearing on international behaviour. That case is supported by the record of the International Court of Justice and the Permanent Court of Justice.

Cheryl Gillan: I, too, shall examine the record carefully to see what the right hon. Gentleman attributed to me in my contribution to the debate. I was expressing concern on behalf of Sir Charles Guthrie and Admiral Sir Michael Boyce, who seemed to feel that we live in an increasingly litigious society. That was reflected in the comments of Admiral Sir Michael Boyce when he gave evidence to the Select Committee. The right hon. Gentleman needs to be very careful before he imputes a motive to my hon. and learned Friend or me. It would have been better if he had attended rather more of the Committee's proceedings and heard the thrust of our arguments throughout. I hope that he will carefully consider what he has just attributed as the motive of my intervention on the new clause. He is incorrect.

Robert Maclennan: I have sat for many hours, and will no doubt sit for many more, without complaint, listening to arguments that are made perfectly in order but not unfamiliarly. Indeed, the arguments have been deployed with such frequency that I think it unlikely that I would have misconstrued them. The hon. Lady, who spoke for nigh on 35 minutes on new clause 1, made few points that she had not made in discussing earlier amendments or at another stage of the Bill's consideration.
 There seems to be no reason to believe that the implementation of the Bill and the ratification of the statute will put our troops at risk of a lower standard of justice than that which they would expect from the British courts. There is little evidence to suggest that that anxiety is strongly held in the country's military circles. If there were such evidence, it would have been more comprehensively deployed in our debates. 
 Reference has been made en passant to Sir Michael Boyce's evidence to the Select Committee. I venture to suggest that his was not a considered contribution to our discussions, and important though his views are, he does not seem to have focused squarely on the issues before this Committee.

John Battle: I have the minutes of the exchanges that took place with Admiral Sir Michael Boyce. The question was:
 ``Do you have any other areas that have not emerged from the discussion we have just had where you think it would be right in order to maintain operational effectiveness, in order to maintain the military ethos in this country and the morale of the people serving in the armed forces, that we should provide additional legal protection against some of these hazards?'' 
Admiral Sir Michael Boyce replied: 
 ``I am as confident as I can be at the moment that we are taking what actions we need to in the light of legislative Bills coming forward to have exemptions where appropriate. Three or four years ago we were not well set up.'' 
He repeats similar assurances later. It is therefore unfair to keep citing Admiral Sir Michael Boyce as though he were opposed to the provisions in the Bill.

Robert Maclennan: I am extremely indebted to the Minister for putting those words on the record. He removes the last shred of evidence in support of the view that the military are worried about the matter. Candidly, if the military were seriously worried about it, we would have heard about it directly.

Cheryl Gillan: The right hon. Gentleman fails to appreciate the debate that has taken place. I have some of the cuttings that surround the discussions—headlines in The Daily Telegraph such as ``Forces chiefs warn war crimes Bill will put troops' lives at risk'', ``Forces fear war crimes threat'' and ``Could British pilots face trial for bombings?'' I could go on. I am willing to let him have copies of those articles. He fails to appreciate the great debate that has surrounded the matter and the fears that have been voiced in evidence, in public and in military circles.

Robert Maclennan: The hon. Lady mentioned all those matters in her contribution on Second Reading. To be candid, she has produced no further evidence, only rather tenuous references to unnamed people. I do not believe that the Committee should give weight to rumours that have emanated from her friends in the press, because they are without substance or weight. It is futile to reiterate such points.

Crispin Blunt: Having been a special adviser to the Ministry of Defence and a soldier, I believe that the right hon. Gentleman is unfair if he expects the Chief of the Defence Staff and other serving soldiers to break cover and make it clear that they are against the Government's policy. They advise the Government in private, and carry out the Government's instructions, as long as they are within the law. The right hon. Gentleman is wrong to expect the Chief of the Defence Staff to be able to make the point, and also to be able to make it in public.
 The most that one gets from serving soldiers is stories such as those referred to in the press. From my experience, the serving military have a pretty limited focus on the matters we are discussing. Most of them will be unaware of proceedings, just as commanding officers were wholly unaware of what we were planning to do to their powers when we passed the Armed Forces Discipline Act 2000.

Robert Maclennan: The hon. Gentleman's case was answered by the Minister. He read the question that had been put to Admiral Sir Michael Boyce, which would have allowed him to express precisely the concerns that have been dribbled around the Committee, and he would have felt no inhibition. Serving officers have a loyalty to the House when they are questioned by Select Committees, and may speak freely about any concerns that they may have. That is not an innovation and it is well known. Conservative Members have nothing on which to build their gossamer case.

Tony Worthington: May I assist the right hon. Gentleman to whip up even more frenzy? Does he agree that a real problem with the Bill is that we may create a situation in which the only people who appear before the International Criminal Court are those from losing nations and poor nations? We should give an undertaking that our troops, American troops and French troops must, at some stage, be subject to the Bill.

Robert Maclennan: I am grateful to the hon. Gentleman again. Far from stirring up frenzy, I think that I have emulated the late Lord Whitelaw by stirring up apathy.
 The point made by the hon. Member for Clydebank and Milngavie (Mr. Worthington) is perfectly valid. If we submit to the jurisdiction of the court, we say to the world that we are prepared to put our own troops in the same position as those of other subscribing nations. There is no reason why we should seek to exempt them, because we feel that the justice that will be meted out by the ICC will be of the highest standing. Our confidence may lie in the improbability of our troops being charged with crimes against the laws of war. 
 The Conservative party is unwilling to subscribe to the statute and the Bill in terms, and prefers to wave a jingoistic and nationalist flag--which it usually does in a different context. It is, at best, willing the ends, but refusing to deliver the means. I hope that such arguments, which have been round the course several times, are blowing themselves out in Committee, and that we progress rapidly to debate the Bill on Report.

Gerald Howarth: It is wonderful that the right hon. Gentleman has been sparked into action and into something of a frenzy, although he is probably the only source of apathy, and he has not attended all our sittings. In his last few days as a Member of Parliament, I am sure that he has many responsibilities that he wishes to discharge before taking leave of us. We shall be sad to see him go, but it is unfortunate that his parting shot is to cast aspersions on my colleagues.
 I readily accept that the right hon. Gentleman takes a different view from Conservative Members. He places greater reliance on the effectiveness of the court, and he does not believe that there is any likelihood of an abuse of power. I remind him that it is our responsibility to ensure that measures are not passed into law that are likely to imperil our troops on whom we call to take action in support of Britain's national interest or in the defence of these islands. That is entirely right and proper. Our constituents expect us to take such action, and it is our job as the official Opposition to probe every angle to ensure that the Bill is watertight and that our fears are allayed. 
 We must consider how matters may develop in future. It is not sufficient to take the words of the statute at face value as though that is how the situation will remain for all time. That is not a prudent way in which to proceed. I strongly support new clause 1, and we have put forward a strong case for it to be accepted. It would not challenge the fundamental nature of the Bill. It would not challenge the treaty. Indeed, its provisions are specifically provided for in the treaty. 
 I am not sure whether Ministers said that the UK Government or the French were in the van of ensuring the existence of article 124. The French have entered specific reservations, but why was it right for them to do so? The right hon. Member for Caithness, Sutherland and Easter Ross is more of a Euro-fanatic than I.

Edward Garnier: That is not possible.

Gerald Howarth: It is possible, although I have excellent Euro credentials. The right hon. Gentleman dismissed lightly the worries of our French counterparts. The French were right to enter such reservations, and I do not understand why this country cannot do the same. We are not rejecting the treaty or the Bill for all time, but merely saying that we should take advantage of article 124 and see how things go.
 My hon. and learned Friend the Member for Harborough said that the French, given how they want such slightly abstract phrases to be interpreted, will give comfort to their troops. It is a pre-emptive strike. We, I fear, will hobble our troops. The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said that the existence of these laws is an inhibition--I hope that I have quoted him correctly. I am sure that he is right. We all want them to be inhibitive—we want them to constrain military action so that it does not transgress the rules of war as laid down in the statute. However, we do not want to inhibit the actions of our troops in such a way as to put them at greater risk and inhibit them in the prosecution of their duty, which is to fight. 
 My hon. Friends have referred to the evidence given in Committee by the Chief of the Defence Staff. I am sorry that the Minister sought to dismiss the Chief of the Defence Staff's concerns, as he expressed them clearly. On page 145 of the minutes of evidence to the Select Committee on 6 March in relation to the Armed Forces Bill, Sir Michael Boyce stated that it was unlikely that a British service man would be brought before the ICC because the national court would have the opportunity to investigate the case first. My hon. Friend the Member for Grantham and Stamford (Mr. Davies) then asked: 
 ``Is it good enough to hear that it is `unlikely to happen', or would you prefer to have a more concrete exemption or derogation or protection in law?'' 
Sir Michael responded: 
 ``I cannot say that `unlikely' fills me with huge confidence. I would be much happier with a completely unequivocal statement, but I guess that is probably the best I will get.'' 
He continued: 
 ``If there are ways which guaranteed that the word `unlikely' could be removed, that would be more comforting.'' 
The Chief of the Defence Staff could not be more explicit in his reservations, but he acknowledges that that is the best that he is likely to get. He is, of course, answerable to the Government, and will not express publicly his reservations unless he feels strongly about them and is advised by others. 
 As for the contention of the right hon. Member for Caithness, Sutherland and Easter Ross that we have no evidence to adduce, I freely admit that I would not rely on the veracity of The Guardian—I put rubber gloves on when I am forced to read it. However, given the comments of my hon. Friend the Member for Reigate (Mr. Blunt), who served and has contacts in the armed forces, and given the conversation that I had with a recently retired senior officer in the Army, it is nonsense for the right hon. Gentleman to suggest that the armed forces are not expressing real concerns. That is why new clause 1 is important—it would provide a breathing space to see how the court pans out. 
 Provided that our proceedings run long enough and we progress sufficiently expeditiously to arrive at schedule 8, we shall deal with some practical examples of how the incorporation of certain war crimes in our statute book could present us with problems. It is important to think in practical terms when considering the military's reservations. 
 My hon. and learned Friend the Member for Harborough referred to the concerns of the French about the deployment of nuclear weapons. The only occasion on which nuclear weapons were deployed was against Japan in 1945, when horrendous damage was caused. We acknowledge that huge casualties—that is the euphemism—were inflicted on the civilian population, and environmental damage was caused. 
 The Minister must answer the following question: if the British Government were to decide, in a future conflict, that their only option was to use nuclear weapons, could the service personnel responsible for deploying them be liable to prosecution under the Bill? No British court would prosecute the captain of a bomber that had delivered theatre nuclear weapons, because he would have acted under the auspices of the British Government and Parliament. That is where the problem would arise: the ICC might accuse the United Kingdom of refusing or being unwilling to prosecute, and of shielding people who have been responsible for widespread environmental damage and the death of many civilians. That is why we have reservations about the court's involvement in such matters, and the Minister must reassure us on that.

Robert Maclennan: Will the hon. Gentleman clarify his comments? Was he speaking of nuclear weapons alone, or of methods of war that a commanding officer might deem necessary to achieve his military ends? It sounded as though he was referring to the latter situation. If that is the case, it appears that he is claiming that the laws of war should not constrain British troops, and few service men would subscribe to that view.

Gerald Howarth: The right hon. Gentleman might have misunderstood me. I was referring to actions taken by British troops that are fully authorised by the Government of the day. I was not thinking only of nuclear weapons, although their use provides the most obvious example of the type of military attack that I had in mind. The effects of the bombs that were dropped on Hiroshima and Nagasaki make it clear that it is almost impossible to deploy nuclear weapons without incurring civilian casualties and considerable environmental damage.

Robert Maclennan: The hon. Gentleman is getting into very dangerous waters. He appears to be suggesting that if the Government authorises a particular form of warfare, it must be justified, regardless of the laws of war. That doctrine was rejected at the Nuremburg trials, and in particular with respect to the Ardeatine cave massacre, when the Berlin Government authorised—indeed, instructed—the shooting of many Italian hostages to slow down the German army's defeat in Italy. The perpetrators of that massacre were hanged. In my judgment, that was a reasonable punishment for the crime.
 I think it unlikely that a British Government would similarly transgress the laws of war, but if they were to do so, I fail to see any valid argument for not subjecting them to the arbitrament of justice.

Gerald Howarth: I would understand and share the right hon. Gentleman's strength of feeling if British troops were to commit war atrocities, such as those that are set out in article 8, which include torturing captives and forcing them to fight on our side against their own people.
 However, my point is that Ministers keep assuring us that the court will not apply to us. In the other place, Baroness Scotland reassured Lord Shore by stating that 
 ``The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.] 
I can foresee a case in which that might happen and have tried to give an example—perhaps, thank God, it is an extreme example because it does not look as though nuclear weapons will be resorted to in the foreseeable future. It was thanks to the previous Government that we maintained a strong nuclear defence, which ensured that such a situation did not occur. It could arise, however, in other circumstances—recent examples are the bombing of Belgrade and the Chinese embassy. Is a radio station a military target if it contains only civilians but is pumping out military intelligence information? We may think it justified to bomb such a target, whereas the court may take a different view. What happens then? Can we rely on the assurance of Baroness Scotland? 
 I conclude by referring to the important remarks made by Lord Shore during the same debate. He was involved in the second world war and mentioned the two categories of war to which my noble friend Lord Tebbit referred. Lord Shore said: 
 ``But there is also a third category—all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.'' —[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.] 
The Committee must bear in mind the fact that if we are not to hobble our troops and put them at additional unjustified risk, and if we are to protect the interests of our country, we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.

John Battle: This is the 21st Standing Committee on which I have served, and occasionally the Committee has risen to the debate. The Opposition's amendments have cut to the heart of some serious concerns and questions, and I thank them for that. We have not frivolously wasted time, but have tried to get to grips with serious issues. The right hon. Member for Caithness, Sutherland and Easter Ross made an eloquent, telling and passionate intervention, and his commitment to the Bill is second to none. No one would dismiss him as a dewy-eyed, young idealist. He may be an idealist, but everyone would respect him as a man of practical reason, whose experience and wisdom is worth listening to.
 The right hon. Gentleman said that our aim should be to strengthen deterrence. We hope that the court will not be used, but act as an international deterrent. He argued that an international institution, such as the one that we are trying to build, will do more to meet that aim than can any individual nation state. I agree with him and hope that that will be the banner behind which we consider and support the Bill and carry it through in practice. 
 The right hon. Gentleman said that we should not invoke the doctrine of unripe time. I think that he was saying that we cannot defer matters for ever until we find the perfect statute that all other countries in the world have signed and then agree to join it. We do not have the luxury of being in that position. We should be putting in place a deterrent—I would hope a preventive measure—which is backed up by argument. At one point, I nearly leapt up to intervene in his speech. It may amuse other members of the Committee to know that in my mis-spent youth I studied the works of the medieval theologian, Thomas Aquinas, who was reinterpreting Aristotle on the just war. He tried to argue the role of reason against the use of force. He suggested that reason could overcome force and that we should not accept the view that might is always right. He implied that human beings together could in a reasonable way transcend violence. That is what the Bill is about. 
 I am sure that we all agree with the hon. Member for Aldershot (Mr. Howarth) that we should not pass measures into legislation that will imperil our armed forces. I do not always agree with him, but his sudden enthusiasm for the French is rather strange and surprising, and most welcome. He rightly said that definitions of the crimes will be considered later in the Bill under schedule 8. As usual, we are debating in the middle of the Bill measures that will be tabled as Opposition amendments in later proceedings. 
 I shall do my best to reply to the arguments advanced in favour of the three new clauses. We shall continue to emphasise that we are determined to ensure that our armed forces are protected properly under law. That is the case in Britain and we want it to continue ad infinitum. I reiterate that the Government have never intended to take out the seven-year opt out on war crimes provided under article 124 of the Rome statute. There is no need to do so. To use a parliamentary and legal word, we are ``content'' with the definition of war crimes under the statute. We do not need to prepare ourselves to accept them, as the French suggested that they did. They are crimes under international law by which our military are already bound. 
 I am sure that the Committee agrees with the principle that we condemn war crimes and believes that those who commit them should be punished. We should not exempt ourselves from that. If we decide not to be bound by the war crimes provisions, we shall weaken the case internationally when condemning war crimes committed by other states. The right hon. Member for Caithness, Sutherland and Easter Ross made a telling intervention. I hope that the argument was not being advanced for exemption from the rules of war, because our armed forces sign up to such rules and know what they are dealing with. We know that war is nasty and brutal. It is within the brackets of the rules of engagement and the laws of war. We must never step back from that.

Crispin Blunt: Presumably the Minister will reject the new clauses, given that he is making the case for the United Kingdom not taking a view under article 124 or making a declaration. Will he put it clearly on the record that he does not agree with the position taken by the New Zealand Government in their declaration about how the articles should be interpreted?

John Battle: I shall come on to New Zealand. The hon. Gentleman asked me about France. I reinforce the fact that only one country has taken the opt out so far. We are aware of no other country planning to do so. None of our other NATO allies has done so and eight have ratified within NATO.
 Opposition Members might like to reflect on Lord Kingsland's words. In the other place on 20 July, during the debate on the adoption of the Rome statute, he said: 
 ``There is, however, one immense drawback . . . the drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes.''—[Official Report, House of Lords, 20 July 1998; Vol. 592, c. 626.] 
Even the Front Bench spokesman in the other place agreed with the Government in 1998 that there was no place for an opt out. We agree, and I hope that I can encourage Opposition Members to agree with their Front Bench spokesman in the other place. 
 The matter is not subject to division. We can be proud of our armed services and their record in abiding by international law in their operations. Our armed forces are already bound and trained to observe international law, and do so. The international criminal court statute does not make criminal any activity now carried out legitimately under that law by service personnel. Views in the other place were tested on that point on Report. We cannot make clearer our view on the opt out. 
 On the history of the opt out, I remind hon. Members of the words of my right hon. Friend the Foreign Secretary in the debate on 20 July 1998: 
 ``I shall not pretend to the House that we put forward that concession or that we would have wished to see it as part of a negotiating position'' 
—referring to the opt out— 
``but it does not strike at the heart of the court— 
as the hon. Member for Aldershot conceded— 
``and was well worth agreeing to in order to get aboard a number of countries that would not otherwise have supported it.'' —[Official Report, 20 July 1998; Vol. 316, c. 812.] 
We are creating an international institution, and we must negotiate to do so. Our views are more than plain, and we shall continue to spell them out if necessary. 
 The matter was one for New Zealand. We cannot answer for every other country's interpretation and say whether it might be the same as ours or different or why a country has expressed its views in the way that it has. Whether we reject the declaration of New Zealand is irrelevant to what we do here, but we cannot answer for New Zealand directly. 
 In interventions on the right hon. Member for Caithness, Sutherland and Easter Ross, Opposition Members waved about a sheaf of press cuttings. I hope that that sheaf of press cuttings contains a letter from The Guardian—I shall not repeat the comments of the hon. Member for Aldershot—which is a printed document, from the former head of the British Army legal services, Major General Tony Rogers, which states: 
 ``When carrying out attacks on military objectives, we are already under a treaty obligation not to cause disproportionate incidental loss and damage to the civilian population. The Geneva Conventions have been put to the test recently. I am not aware we had any difficulties complying with our treaty obligations during the Gulf War of 1991 or the Kosovo war of 1999''. 
That speaks for itself.

Gerald Howarth: I invite the Minister to consider why the major general used the word ``disproportionate'' in respect of incidental loss of life when the treaty contains no such word.

John Battle: I am sorry?

Gerald Howarth: The word ``disproportionate'' mentioned in the letter that the Minister just quoted does not seem to appear in article 8.2(b)(iv).

John Battle: It is implicit in article 8.2(b)(iv), which refers to:
 ``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''. 
I suggest to the hon. Gentleman that in writing a letter to The Guardian and using the word ``disproportionate'', the major was putting a few words together to form one word, but the intention was more than plain. 
 The hon. Member for Reigate asked a similar question and, if I remember rightly, he was pressed by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) about the case of the soldier and his colleague whom he knew well—I think it was his driver—who was subject to international criminal jurisdiction, and whether that prevented the individual from making the right decisions. The hon. Member for Reigate said that the answer was no. That exchange clarified what we have said all along—the creation of the ICC will not inhibit the proper conduct of duties by our armed forces. The hon. Gentleman assented to that in an exchange on the Floor of the House.

Crispin Blunt: The matter is extremely important. There would have been no difference to Corporal Henry in the circumstances under the ICC, and it made no difference that he was subject to the Yugoslav court. However, the moment that someone such as Corporal Henry is taken before the ICC because of a complaint by the families of people who may have been killed by him in action, and we find ourselves, having decided that he had committed no offence, in the position that he was tried by the ICC, for ever after every soldier would be concerned about how he took part in action. The concern is about what would happen if such an event occurred.

John Battle: If a soldier in Britain commits an offence, he comes before our courts.

Des Browne: To allow the response to the intervention to be retained within the same context, one must bear in mind that the same soldier, when pursing his legitimate aims, was subject to the jurisdiction of the International Criminal Tribunal for former Yugoslavia, the jurisdiction of which was not complementary to the jurisdiction of our courts, but was overriding. The soldier was subject to exactly the same risks after being exposed to them by the actions of the previous Government.

John Battle: My hon. Friend's point about troops who are under ICTY jurisdiction has proved that it does not hamper operations. In such a respect, Corporal Henry would not be any more likely to face trial by the ICC than he was of prosecution by the ICTY.
 I pray in aid General Colin Powell, who commented on the code of law in the Department of Defense report to Congress on conduct of the Persian Gulf war. The matter relates to the notion of the hon. Member for Reigate about military personnel with a lawyer over their shoulder. Colin Powell said: 
 ``Decisions were impacted by legal considerations at every level, the law of war proved invaluable in the decision making process.'' 
That statement stands by itself. United Kingdom service personnel are investigated and will be prosecuted in the UK for breaking the rules and laws of war now. That does not prevent them from doing their job. The rules of engagement are a product of international and domestic law and of operational requirements. Given rules of engagement are made to comply with the law through that rigorous procedure of checking through the Ministry of Defence, the prospect of those rules providing the basis for a case against a soldier, sailor or airman who follows them is inconceivable. 
 On my desk there is a handbook entitled ``Documents on the Rules of Law'', which has been around for some centuries. A corpus of opinion has built up around these matters, and it may be worthwhile in the context of the launch of the ICC to spell that out as background, so that we are all well aware of the context in which our personnel will operate. I pray in aid Judge Richard Goldstone, who was the prosecutor for the international tribunal for former Yugoslavia. He was asked on the ``Today'' programme on 8 March what he thought of the fears of the top military brass about the proposals that we are discussing. He said: 
 ``I have no doubt that the fears are without justification at all. Firstly the war crimes defined in the Rome Statute are really the most serious crimes intentionally committed. In the second place . . . the ICC . . . will not have the jurisdiction at all...over a British citizen if the British military or civil courts investigate in good faith any allegations made.'' 
He said that he hoped that the ICC would get under way in 12 to 18 months. Any investigation, regardless of its outcome, conducted by a country into one of its own citizens robs the ICC of any jurisdiction. We must not forget that rule of complementarity.

Crispin Blunt: I agree with all the points that the Minister has made about how the court should operate, but he should consider what would happen if the court did not operate as intended.

John Battle: We must also consider the parameters of the court. I sometimes think that the Opposition fear loopholes where there are none: for example, they expressed concern in relation to naval warfare, with reference to your good self, Mr. Cook. There is explicit provision in relation to article 8 for war crimes to be interpreted within the established framework of the international law of armed conflict including, as appropriate, that law as it applies to armed conflict at sea. Therefore, the Navy is covered.
 On Second Reading in the House of Commons, my right hon. Friend the Foreign Secretary stated clearly and unambiguously: 
 ``British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.''—[Official Report, 3 April 2001; Vol. 366, c. 222.] 
That will happen first, so the ICC will not get a look in. That point is sometimes neglected by the Opposition.

Gerald Howarth: I am sorry to press the Minister on the matter, but I must challenge the assertion that the ICC cannot possibly second-guess a bona fide examination by our national courts. I cannot accept that there are no circumstances in which a case considered in good faith in this country and dismissed could not be subject to being second-guessed by the ICC.

John Battle: The rules state that the ICC will consider only cases that the country in which the accused resides is ``unwilling and unable'' to prosecute. We have been clear about that in our discussion of handing over and arresting people, and we cannot go back over that ground. The ICC will not get a look in, because such cases will be tried here first under the rules and laws of war in this country. Our rules of engagement in international military operations comply with United Kingdom domestic and international legal obligations. In the past, that has resulted in rules of engagement that differ between national contingents of our forces. We must not forget that British forces and operational deployments are subject at all times to military law, which is United Kingdom domestic law within the context of the Geneva convention and its annexes to which we have signed up previously.
 I emphasise that the ICC statute does not create a new law. It does not ban the use of weapons that have been in our arsenal or been the subject of our procurement process. The laws dealing with weaponry are created under the United Nations convention or are part of our customary international law. No new ground will be created, and arguments to the contrary are smokescreens or red herrings. I agree with the right hon. Member for Caithness, Sutherland and Easter Ross that we can argue that there are loopholes in the Bill, but when those loopholes have been rebutted they should not be used to suggest that our intention is not to let the court get off the ground. I do not suspect that to be the Opposition's motive: I accept their arguments in good faith and believe that, like us, they want to ensure that we achieve the best Bill possible. I hope that I have given Opposition Members the reassurances for which they have asked on new clause 1. 
 New clause 5 would require the Government to seek parliamentary approval of reservations and declarations before ratification. Under article 120 of the Rome statute, no reservations may be made to the statute; accordingly, the Government will not be making any, nor will we be taking the war crimes opt-out under article 124. My right hon. Friend the Foreign Secretary made it clear on Second Reading that we expect to make a declaration on ratification in accordance with article 87 on such matters as our wish that ICC documents to be sent to us in English. Similar declarations on ratification have been made by eight other states. When ratifying an international treaty, it is usual practice for states to make an interpretive statement showing their understanding of certain provisions should they wish to do so. We have to make a final decision whether we shall produce such a statement. Of the 29 states that have ratified the statute, only two have made interpretive statements—and the second was a response to the first. 
 One of the reasons why so few states have made interpretive statements is that the ICC is not obliged to take such statements into account. As reservations to the statute are not permitted, states cannot make any declaration that purports to modify the legal effect of the statute—nor do we wish to modify the legal effect of the statute. We have no difficulty with it as drafted. There was a consensus in favour of it, which is why we signed it, and it was welcomed in this House and in another place in 1998.

Edward Garnier: We all know about article 120, and several members of the Committee referred to it earlier. Why did those other countries produce such declarations if they are of no effect?

John Battle: Again, I am being asked to answer for the statements of other countries. I can answer only for our intentions, and I could not have made it clearer that it is not the practice of the current Government, nor has it been the practice of previous Governments, to make subject to prior parliamentary approval declarations that we intend to make on ratification of international treaties. What the new clause asks of us has never before been required of a Government. Declarations to previous treaties have not been subject to that procedure, including the treaties on which the crimes under the statute are based, such as the Geneva convention, the additional protocols and the convention on the safety of United Nations and associated personnel. Opposition Members have signed up in the past to the provisions that we are asking them to sign up to now without seeking prior parliamentary approval, and it is not necessary that they do so now.
 As for new clause 7 and declarations, my noble Friend Baroness Scotland said in the other place that the Government would be happy to keep the Opposition in touch with our thinking. That position remains the same. We are listening, but we do not see the need to deal with the matter in the Bill. We shall return to it at the appropriate time. 
 We and numerous other countries spent years negotiating the Rome statute, the rules of procedure and evidence and other documents to give the necessary safeguards to ensure that the court will fulfil its mandate in a professional, independent and impartial manner. We supported the court on that basis. The House welcomed the principle in July 1998 and we debated it again in October 1999 and on Second Reading. Rather than question whether we want to ratify it at all, as the right hon. Member for Caithness, Sutherland and Easter Ross said, the new clauses should be withdrawn. They are unnecessary and could weaken the Bill substantially. Given that, in the other place, assent has been given to our proposals rather than the proposals in new clause 1, and given that, in new clause 7, Opposition Members have assented to exactly the provisions that were inserted in the Bill previously, I see no reason for them to change their approach now.

Cheryl Gillan: We have had a good debate on the new clauses. I do not intend to detain the Committee with a lengthy response to the Minister's comments. I can see the relief on the faces of members of the Committee.
 We have attached a great deal of importance to new clauses 1 and 5, and we do not feel that either is overly ambitious. They constitute simple requests to put safeguards in the Bill. In reference to the unlikely but possible event of a junior person coming before the International Criminal Court, the much-quoted Admiral Sir Michael Boyce, in his evidence to the Select Committee, said: 
 ``If there are ways which guaranteed that the word ``unlikely'' could be removed, that would be more comforting.'' 
All that we have sought to do is to provide that comfort. 
 I am sad that the Minister is not able to accept the new clause. We have flagged up our concerns throughout the proceedings and I am not satisfied by what the Minister has said. To indicate the strength of feeling, especially on new clauses 1 and 5, I want to put the new clause to a vote. 
 Motion made, and Question put, That the clause be read a Second time:—
The Committee divided: Ayes 5, Noes 12.

Question accordingly negatived. 
 Further consideration adjourned.—[Mr. McNulty.] 
 Adjourned accordingly at Seven o'clock till Thursday 3 May at five minutes to Ten o'clock.